Real damage. Recovery of real damages

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Losses are recognized as negative property consequences that arise in connection with the violation of the rights of the subject. They act as an integral element of the composition of unlawful behavior if it resulted in their infliction. Consider further what constitutes losses in the form of real damages.

General information

In civil law, losses are an objective condition and measure of responsibility. This allows them to be fully compensated. The recovery of real damage, thus, contributes to the restoration of the property status of the victim, bringing it to its original state (before the violation).

Definition

In the Civil Code, losses are the costs that the subject, whose rights are violated, has incurred or will have to incur in order to restore his property status. They are also called damage or loss of valuables or lost profits that could have accrued to a person under normal conditions of turnover ifhis interests were not infringed. This definition is contained in Art. 15 of the code. Thus, the legislation singles out real damage and lost profits.

Unearned income

Real damage and lost profits have a number of distinctive features. The most complete information about lost income is stated in the plenary Resolution of the Supreme Court No. 25 of 2015-23-06. The document states that, within the meaning of Art. 15, lost profits should be recognized as lost profits, by which the mass of property of the subject whose right was violated would have increased if there had been no illegal behavior. Since we are talking about lost income, when resolving cases related to its reimbursement, it must be taken into account that its calculation, which is provided by the plaintiff, is usually approximate and is probabilistic in nature. This circumstance cannot in itself act as grounds for refusing to accept an application. If the person who violated the right of the plaintiff received income in connection with his illegal behavioral acts, the victim has the right to demand compensation, along with other losses, for lost profits in an amount not less than this income. In determining lost profits, the court must take into account not only potential revenues, but also the costs that are necessary to obtain them. Compensation may be denied if cost estimates are not provided.

Real damage: RF Civil Code

In accordance with Art. 393 of the Code, the subject must compensate the creditor for losses incurred as a result of non-performance orimproper fulfillment of the terms of the transaction. Corresponding obligations arise from the contract in connection with the infliction of harm, as well as on other grounds provided for in the legislation. The latter are indicated in Art. 8 CC. The grounds for the emergence of obligations, in particular, include acts of state bodies and local authorities, decisions of meetings, legal events, with the onset of which normative acts associate the emergence of civil legal consequences, and so on.

Features of the proof

When sending an application demanding compensation for damages (actual damage), the plaintiff must provide materials confirming:

1. Wrongful conduct.
2. The fact of the occurrence of harm and its magnitude.
3. Relationship between actions/inactions and consequences.

The amount and type of evidence that the plaintiff will have to provide will depend on what exactly the actual damage consists of: property lost or damaged, certain expenses were incurred, and so on. Explanations on this matter are given in the Decree of the Supreme Court No. 6/8 of July 1, 1996. Paragraph 10 of this document states that the actual damage includes not only the actual costs incurred by the victim, but also the costs that he will have to incur for restoration of their violated rights. These circumstances must be taken into account when resolving cases related to the presentation of claims for compensation for harm. The need for expenses constituting real damage must also be confirmedcalculations and other evidence. The latter can be an estimate of the costs necessary to eliminate the lack of products, an agreement establishing liability for non-fulfillment of obligations, and so on.

In the process of proving the size and the very fact of the occurrence of harm, it is necessary to take into account the provisions of paragraph 49 of the above decision. In accordance with them, real damage is understood as an expense that will be incurred by the victims in kind. So, if the violated right is supposed to be restored through the acquisition of certain valuables or services / works, their cost should be determined in the manner provided for in Art. 393, paragraph 3 of the code, and in cases where, as of the date of filing a claim or making a decision, the actual expenses of the victims have not yet been made.

Important moment

According to paragraph 3 of Art. 393 of the Code, unless otherwise provided by law, other normative acts or agreement, when determining the amount of losses, it is necessary to take into account the prices that existed in the place where the obligation was to be fulfilled, on the day of the voluntary repayment of the creditor's claims by the debtor. If the latter did not occur, then the cost that was in effect on the day the application was submitted to the court is taken into account. Given the circumstances, the competent authority may grant the claim for damages based on the prices prevailing at the date of the decision.

Reimbursement amount

The suing person may require the violator to compensatereal (material) damage in full, unless the law or the contract provides for a smaller amount. This rule must be considered in conjunction with Art. 400 of the Civil Code. According to the norm:

1. For some obligations, including those related to certain types of activities, the law may impose a limit on full compensation for losses.
2. An agreement to reduce the debtor's liability under adhesion agreements and other acts, under which the creditor is an individual acting as a consumer, is considered void, provided that the amount of liability is determined by the norms or it is concluded before the occurrence of circumstances that entail negative consequences for failure to perform or improper performance of duties.

Examples

The legislation establishes the following cases when the creditor's right to demand direct real damages from the debtor is completely limited:

1. St. 78 of the Civil Code. The successor (heir) of a member of a general partnership is liable for the obligations of the association to third parties, for which, according to Art. 75, paragraph 2, the participant who left it would answer within the limits of the transferred property.
2. In accordance with Art. 354 of the Merchant Shipping Code, the liability of the shipowner and the salvor is limited according to the requirements that the code establishes in Art. 355.
3. If a pen alty is provided for improper performance or non-performance of an obligation, the real damage is compensated in the part not covered by it. By law or contractdefine different cases. For example, it is possible to recover only a pen alty, but not losses, when a claim for compensation of damage in full in excess of it can be made, and also when either one or the other can be compensated at the choice of the victim.

Nuances

You should pay attention to the fact that interest on the use of other people's funds always has a offset character. This means that the Civil Code allows compensation for real damage only in the part that is not covered by them. This provision is established by paragraph 2 of Art. 395 of the Code, as well as paragraph 50 of the Decree of the Supreme Court No. 6 and the Plenum of the Supreme Arbitration Court dated July 1, 1996 No. 8. Real damage incurred by an organization or citizen in connection with illegal actions / inactions of state, local authorities or employees of these structures, in including when issuing a legal act that contradicts the norms, is subject to compensation by the Russian Federation, a constituent entity of the Russian Federation or a municipality. This prescription is contained in Art. Codex 16.

Court practice

The authorized body canceled earlier decisions in favor of the plaintiff, who demanded compensation for real damage and lost income under the REPO agreement. The court pointed out that the seller-creditor could not prove the occurrence of financial losses arising from the debtor's failure to fulfill obligations relating to the return of securities. Thus, the refusal to satisfy the application was justified by the failure to submit supporting documents.

The plaintiff filed a claim to compensate for the real damage that arosein case of improper storage of property that was confiscated by the executive federal body. The application was granted, since the transfer of valuables does not release the state from liability for losses caused by the failure of the authorized structure to ensure the safety of things. The actual damage was calculated by the plaintiff as the difference between the purchase price and the actual sale price of the damaged product. The Applicant determined the lost income in accordance with the selling price of goods of adequate quality existing on the market. At the same time, transportation and procurement costs and the purchase price were deducted.

The next example concerns the improper assessment by the courts of the defendant's arguments about the causal relationship between his actions and the occurrence of negative consequences in the form of harm to the plaintiff. In accordance with the technical opinion, the cause of the collision of the diesel locomotive and wagons, as a result of which the applicant suffered real damage, indicates the presence of violations in the actions / inactions of the defendant and the customer. The latter, under the terms of the contract, assumed the obligation to give orders for the use of the locomotive. Under these circumstances, the decisions made in the case cannot be considered lawful. In this regard, they are subject to cancellation, and the case materials are to be sent for reconsideration to the first instance to study the stated requirements, identify the actual events of the incident and evaluate the evidence provided.

Other occasions

In the cassation complaint, the applicant, who is a competitivemanager, refers to the impossibility of establishing the amount of damage. As justification, the subject cites the fact that the contract, in which the second party is a participant in shared construction, has not been terminated. The cassation instance does not accept this argument, since the Federal Law "On Bankruptcy" does not establish a ban on establishing the amount of losses if the subject did not refuse to fulfill the terms of the transaction. In addition, under Art. 201.6 of the said law were amended. Taking them into account, construction participants may attend meetings of creditors and have a number of votes determined in accordance with the amount paid to the developer under an agreement providing for the transfer of housing or the value of property provided to the service company, as well as the amount of losses in the form of real damage. It is established under Art. 201.5, paragraph 2. All these facts together indicate that the existence of requirements for the transfer of premises and a non-terminated contract is not considered an obstacle to determining the amount of real damage.

It should be said that disputes about compensation for losses are often related to real estate. For example, in Art. 161, part 1 of the LCD establishes that management in an apartment building should provide safe and favorable conditions for citizens to live, maintain common property in good condition, resolve issues related to its operation, as well as provide the prescribed public services.

The plaintiff sent an application to the court for compensation for damage caused by an accident in the pipeline of coldwater supply. The court examined the submitted materials. Taking into account the circumstances, the competent authority satisfied the claim of the applicant, imposing a pen alty on the management company.

Conclusion

Court practice shows that disputes about compensation for real damage and lost profits are often considered by authorized bodies. The main difficulties in the proceedings arise at the stage of collecting and providing evidence substantiating the positions of the parties. At the same time, it is in the interests of each participant in the conflict to bring the maximum number of arguments in their favor. Of course, they must be obtained legally.

Experts recommend paying special attention to calculations. Calculations need to be made not only for real damages, but also for the amounts that are expected to be spent on the restoration of rights. Equally important is the accuracy of the calculation of lost profits.

At the same time, it should be said that many disputes do not reach the court, as the parties manage to resolve everything amicably. Experts recommend, if circumstances permit, first send a claim to the subject that has violated its obligations. It should indicate the illegality of actions / inactions, as well as determine the amount of compensation and the period in which it must be provided. If it was not possible to resolve the conflict in this way, then you should go to court.